bribe public officials. The district court (Dearie, J.) sentenced him principally to
108 months' imprisonment, a substantial downward variation from the
Guidelines range. The Government challenges the substantive reasonableness of
the sentence, contending that the sentence was unreasonably low. We affirm.
BACKGROUND
A.
The Facts
The facts are largely undisputed and are summarized as follows:
1.
The LTTE
Sri Lanka became an independent state in 1948, following the end of
British colonial rule. The Sinhalese Buddhist majority took control, and in the
years since the Sri Lankan government has purportedly engaged in systematic
oppression of the Tamils, a minority group residing primarily in the north and
east parts of the country.
Formed in 1976, the LTTE is a militant separatist group in northern
Sri Lanka that sought to establish an independent Tamil state. It opposed the Sri
Lankan government's alleged persecution of the Tamils. The LTTE engaged in
civil war with the Sri Lankan government, employing a significant military
operation, including an army of some 10,000 soldiers as well as air and naval
forces. The LTTE perpetrated acts of violence in Sri Lanka and India, including
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The D.C. Circuit limited its review to determining whether the materials
furnished by the State Department provided "substantial support" for the State
Department's findings that the LTTE was (1) a "foreign organization" that (2) "engaged
in terrorist activity." See 182 F.3d at 24-25. As to the third factor of 1189, the D.C.
Circuit deferred to the State Departments determination that the LTTE posed a threat
to U.S. national security, holding that this was a nonjusticiable foreign policy decision of
the Executive Branch. Id. at 23 (citing Chi. & S. Air Lines, Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 111 (1948)).
1
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2.
The Crimes
Pratheepan2 was the principal procurement officer for the LTTE
from 2002 to 2006. At the direction of the LTTE leadership, he purchased at least
$20 million worth of military-grade weapons (including anti-aircraft guns, rocket
launchers, and explosives) and materials used to make suicide bombs. Weapons
with serial numbers matching those in Pratheepan's purchase orders were
discovered among weapon caches confiscated from the LTTE by the Sri Lankan
government.
Pratheepan also played a role in a scheme to bribe State Department
officials to remove the LTTE from the foreign terrorist organization list. He
relayed messages between the LTTE leadership and operatives in the United
States who were arranging the bribe with undercover government agents.
3.
in Sri Lanka. He was raised during a time of civil war and was regularly
subjected to violence, bombings, and intimidation as a result of the conflict
between the Sri Lankan government and the LTTE. He attended high school in
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his hometown until he was 14-years old, when his school was destroyed. He and
his family were frequently forced to flee their homes to refugee camps during
military attacks. At one point he returned to his village to find that dozens of
people -- including friends and acquaintances -- had been killed and that many
buildings had been destroyed.
At 21-years old, Pratheepan moved to England, where he was
granted political refugee status. He attended school and earned a bachelor's
degree in engineering, a certification in English proficiency, and a teacher's
certificate. He was employed as a college lecturer in Mansfield, England from
2000 to 2002. In 2002, after seven years in England as a political refugee,
Pratheepan returned to his parents' home in Sri Lanka. He was in Jakarta,
Indonesia when he was arrested based on the charges in this case.
While incarcerated at the Metropolitan Detention Center in
Brooklyn, Pratheepan worked in the Education Department teaching math and
other subjects to inmates. In advance of sentencing, inmates who were students
of Pratheepan wrote to the district court expressing their gratitude for his
assistance.
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Proceedings Below
Pratheepan was indicted in the Eastern District of New York in
statutory maximum sentence for the bribery conspiracy count was 60 months.
Thus, the maximum sentence for both counts was 240 months.3
Pratheepan addressed the district court, stating in part as follows:
This has been a long road for me and my family. . . . I [admired] the
United States for the fundamental principles: freedom, justice,
equality, . . . liberty, peace and Democracy. I wanted these
fundamental rights for my people to live as an equal citizen in our
own country in Sri Lanka. . . .
There is not a single day I have not thought about our people
back at home. They are struggling for their freedom and their
future. They still don't have their freedom. I love my motherland
very much. I never felt that I will ever be separated from my
motherland the same way I will never be separated from my mother.
Now, the reality is that I don't know I will ever be able to go back to
my motherland; to feel the freedom or to see my mother, to feel her
love for me. This is a permanent punishment for me for the rest of
my life at this point.
Prior to imposing sentence, the district court noted: "I will not miss
this case because it's given me some of the most difficult and, in many ways,
As the total offense level was 37 and the criminal history category was VI, the
court determined that the Guidelines range was 360 months to life. The Guidelines
provide, however, that where there are multiple counts and the Guidelines range
exceeds the highest statutory maximum, the sentences are stacked and run
consecutively "to the extent necessary to produce a combined sentence equal to the total
punishment," U.S.S.G. 5G1.2(d), that is, the "'punishment determined after all relevant
Guidelines' calculations have been made.'" United States v. Reis, 369 F.3d 143, 149-50 (2d
Cir. 2004) (quoting United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001)). Of course,
under the post-Booker advisory Guidelines regime, 5G1.2(d) is advisory only. United
States v. Kurti, 427 F.3d 159, 164 (2d Cir. 2005). Hence, the Guidelines range here was
240 months -- based on the stacking of the statutory maximums for the two counts of
180 and 60 months, respectively.
3
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Applicable Law
We review a sentence for procedural and substantive reasonableness
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"nature and circumstances of the offense and the history and characteristics of
the defendant," and all of the statutory factors. 18 U.S.C. 3553(a); Cavera, 550
F.3d at 188. Sentencing courts are not to "presume that the Guidelines range is
reasonable," and instead they "must make an individualized assessment based on
the facts presented." Gall, 552 U.S. at 50. Where there is a variance from the
Guidelines range, on appellate review, "we may take the degree of variance into
account and consider the extent of a deviation from the Guidelines. . . . A major
departure should be supported by a more significant justification than a minor
one." United States v. Stewart, 590 F.3d 93, 135, 168 (2d Cir. 2009) (quoting Gall,
552 U.S. at 47, 50).
B.
Application
The sentence here of 108 months was neither "shockingly low" nor
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Pratheepan explained at his sentencing, "There is not a single day I have not
thought about our people back at home. They are struggling for their freedom
and their future." While these motivations do not justify or excuse acts of
terrorism, it was not inappropriate for the district court to take Pratheepan's
motivations into account. In addition, Pratheepan did not have a criminal
record, and had accepted full responsibility for his crimes. Moreover, for the
nearly six years that he was incarcerated, Pratheepan was a "model" inmate who
earned the gratitude of other prisoners by his efforts to teach them math and
other subjects. In the end, the district court determined that, despite the "banner
of terrorism," this "37 year old, educated Tamil" was "a person of substance and
decency." He was not in this country voluntarily, but had been separated from
his girlfriend and family after he was arrested in Indonesia and extradited here,
and he faced an uncertain future because of the likelihood he would be deported
after completing his sentence and the fear of reprisal in his home country. There
were other considerations as well.
"The particular weight to be afforded aggravating and mitigating
factors 'is a matter firmly committed to the discretion of the sentencing judge.'"
Broxmeyer, 699 F.3d at 289 (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d
Cir. 2006)). In reviewing for substantive reasonableness, "we do not consider
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what weight we would ourselves have given a particular factor," but instead we
determine whether a factor relied on by a sentencing court "can bear the weight
assigned it under the totality of circumstances in the case." Cavera, 550 F.3d at
191. It is apparent that the district court gave careful consideration to -- and
struggled with -- all of the relevant factors. We conclude that it did not afford
undue weight to any single factor.
We hold that the sentence of 108 months fell within the range of
"permissible decisions." The district judge noted that he had consulted with his
colleagues -- other judges -- and that they supported "a substantial variance."
Pratheepan's sentence is also reasonable when compared to sentences imposed
upon similarly situated defendants. See, e.g., United States v. Stewart, 686 F.3d
156, 159-61 (2d Cir. 2012) (affirming sentence of 120 months for former defense
attorney convicted of conspiring to defraud United States, providing and
concealing material support to a conspiracy to kill and kidnap persons in a
foreign country, and making false statements, where Guidelines range was 360
months to life and initial sentence of 28 months was vacated as being
unreasonably low); United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) (rejecting
Government's appeal of sentences of 240 months, 144 months, and 100 months
for three defendants found guilty of conspiracy to kill and maim persons outside
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district court to reduce the sentence because the crime did not target the United
States.
Pratheepan, on the other hand, pled guilty to a crime that is defined
in terms of harm directed at the United States. See 8 U.S.C. 1189 (a)(1)(C)
(providing material support to a foreign terrorist organization whose "terrorist
activity . . . threatens the security of United States nationals or the national
security of the United States"); see 18 U.S.C. 2339B(a)(1), (g)(6). Thus the district
court did not err in considering the degree of harm that an individual member of
the LTTE caused or intended to cause to the United States. Moreover, although
the district court noted that the case "involved people who certainly pose no
direct threat to the United States," it also made clear that it understood that
individuals who violate our laws are subject to punishment here even if they are
not a direct threat to the United States. The district court observed that "[w]e
don't justify the ends with this kind of means. Indeed, these folks, although they
pose no direct threat, face severe sanctions here in the United States because we
don't in any way underwrite or care to underwrite terrorist activities anywhere
in the world."
Second, the Government avers that the district court "rel[ied] on its
subjective viewpoint [that] the LTTE's goals are somehow less blameworthy than
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relevant to the determination of his punishment, and it was appropriate for the
district court to take his motivation into account.6
Finally, the Government argues that the district court gave improper
weight to Pratheepan's family circumstances and his prospect of future
deportation. The Government notes that family ties are not ordinarily a reason
supporting a downward departure, see U.S.S.G 5H1.6, and cites cases holding
that it is "improper for the district court to factor deportation in as an 'additional
punishment,'" United States v. Wills, 476 F.3d 103, 107 (2d Cir. 2007). We are not
persuaded that the district court gave improper weight to these factors.
While 5H1.6 provides that family circumstances are not "ordinarily
relevant" in determining whether a departure is warranted, a sentencing court is
required to consider "the history and characteristics of the defendant" "in
determining the particular sentence to be imposed." 18 U.S.C. 3553(a)(1); see
also 18 U.S.C. 3661 ("No limitation shall be placed on the information
See, e.g., Stewart, 590 F.3d at 140-41 ("In evaluating culpability, we cannot
discount the relevance of the defendant's motivations -- i.e., whether mercenary, see, e.g.,
18 U.S.C. 1968 (murder for hire), or born from a commitment to the use of violence.");
United States v. Hansen, 701 F.2d 1078 (2d Cir. 1983) (noting "'the long unbroken
tradition of the criminal law that harsh sanctions should not be imposed where moral
culpability is lacking'") (quoting Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975)); accord
Porter v. McCollum, 558 U.S. 30, 41 (2009) (holding that defense counsel failed to provide
effective assistance where "[t]he judge and jury at [defendant's] original sentencing
heard almost nothing that would humanize [defendant] or allow them to gauge his
moral culpability").
6
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the prospect of removal proceedings and the impact deportation will have on the
defendant and his family.
In sum, we hold that this is not the "exceptional" case where the trial
court's decision "'cannot be located within the range of permissible decisions.'"
Cavera, 550 F.3d at 189 (quoting Rigas, 490 F.3d at 238). In light of Pratheepan's
personal history and characteristics, the nature and circumstances of his crimes,
and all of the relevant factors, we conclude that the sentence imposed by the
district court was not substantively unreasonable. Rigas, 490 F.3d at 238. To the
contrary, we conclude that the sentence imposed in this case reflects thoughtful
and principled consideration by a conscientious district judge of all the factors
relevant to an individualized determination of a fair and just sentence.
CONCLUSION
The judgment of the district court is AFFIRMED.
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